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Dep't of Transportation v. Kelley

September 10, 2004


Appeal from the Circuit Court of the 12th Judicial Circuit Will County, Illinois. No. 00-ED-218. Honorable Amy Bertani-Tomczak and James E. Garrison, Judges, Presiding.

The opinion of the court was delivered by: Justice Lytton


The Illinois Department of Transportation (IDOT) filed a complaint for condemnation against Mary Kelley, as Trustee under a land trust, to acquire 1.047 acres of land for the purpose of widening an intersection in Plainfield. Defendants' two appraisers valued different portions of land separately, claiming that the condemned acreage should not be subject to the unit rule of valuation. IDOT filed two pretrial motions to bar their testimony, claiming that their appraisal methods violated the unit rule. The court denied the motions. Plaintiff filed a motion for certification of questions under Supreme Court Rule 308, which the court allowed. We answer the certified questions and remand, finding that dividing indistinct portions of the whole violates the unit rule of valuation.


IDOT filed a complaint against the defendant land trust to condemn part of the land pursuant to the "[Fiscal Year] 2000 Highway Improvement Project." IDOT intended to take a 1.047 acre portion of the 289 acre land trust to widen the intersection of Route 59 and 127th Street in Plainfield. The land trust includes a home valued at over $1,000,000 and a second farm residence. The remainder of the property includes farmland and a small segment of wetland along the DuPage River.

The court held a quick take hearing to determine a preliminary valuation. IDOT's appraiser argued that the entire parcel's highest and best use was mixed-use development. He regarded the whole to be the entire 289 acres owned by the trust. Defendants' appraiser, Arthur Sheridan, used the "sales comparison approach," in which he assigned different square foot values to areas of the property that had different highest and best uses. Sheridan assigned a higher value to the area from which IDOT was taking the property because, in his opinion, it had commercial potential and was more valuable than the other areas. He did not combine the different values into the whole property. The trial court found the preliminary valuation equal to the amount determined by IDOT's expert.

Defendants then retained a second expert, Andre Brorsen. In his appraisal, Brorsen divided the 289 acre parcel and determined what he considered the most commercially viable 80 acres to be the whole of the property.

IDOT filed a motion for a judicial determination of what constituted the whole property, arguing that Brorsen was violating the "unit rule" of valuation in his appraisal. The trial court agreed with IDOT and held that the whole property included the entire 289 acres. Defendants then moved for leave to amend Brorsen's appraisal based on the judicial determination. The court granted the motion.

Brorsen then filed a second appraisal in which he divided the 289 acre whole into separate parts according to what he termed three "zones of use:" (1) an 80 acre zone of commercial use, (2) a 201 acre zone of residential subdivision use, and (3) a 10 acre zone of residential estate use. Each discrete zone then had its own value and never became part of the whole. Brorsen claimed that modern appraisal and development trends supported this type of dividing the whole.

IDOT filed a motion to bar Brorsen and Sheridan from testifying, claiming that their appraisals violated the unit rule of valuation. The trial court denied the motion. IDOT filed a Rule 308(a) motion for interlocutory appeal, and the court certified two questions for our review. Both questions present the same general issue: in a partial taking eminent domain action, does the unit rule of valuation prohibit appraisers from valuing portions of the whole differently and separately from the whole?*fn1 We believe the unit rule generally prohibits such valuations, except when the property has clearly delineated different highest and best uses.


The fifth amendment to the United States Constitution provides that private property shall not be "taken for public use, without just compensation." U.S. Const., amend. V. Similarly, our State constitution provides that "private property shall not be taken or damaged for public use without just compensation as provided by law." Ill. Const. 1970, art. I, § 15. "Just compensation" is determined by the fair cash market value of the property at its highest and best use. City of Chicago v. Anthony, 136 Ill. 2d 169, 174 (1990). The purpose of just compensation is to put the property owner in the same economic position as if no condemnation took place; it should not result in financial improvement or excess. People ex rel. Director of Finance v. Young Women's Christian Association, 74 Ill. 2d 561, 572 (1979), overruled on other grounds by People v. Ortiz, 196 Ill. 2d 236 (2001).

A "partial taking" occurs when only a portion of a whole tract is taken by eminent domain. City of Springfield v. West Koke Mill Development Corp., 312 Ill. App. 3d 900, 904 (2000). The unit rule provides that, in partial takings, the part taken must be valued as part of the whole, with all capabilities and best uses considered. Forest Preserve District of Cook County v. Wing, 305 Ill. 194, 196 (1922). In short, the taken portion cannot be valued as a separate tract from the whole. The unit rule is echoed in the Illinois Pattern Jury Instructions: [i]n arriving at the fair cash market value of the property taken, you should determine its value considered as a part of the whole tract before the taking and not its value as a piece of property separate and disconnected from the rest of the tract." IPI Civil 3d No. 300.44.

Not every part of a tract will be as valuable as other parts, and different highest and best uses may be used in valuing the tract as a whole. Department of Public Works v. Foreman State Trust and Savings Bank, 363 Ill. 13 (1936). It may be proper to assign a highest and best use for one portion of the property and a different highest and best use for another. Department of Public Works v. First National Bank of Joliet, 9 Ill. App. 3d 633 (1973). Numerous assignments of use for different parts of the land does not necessarily conflict with the unit rule because it allows the owner to be made whole; it is an equitable ...

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